The Ninth U.S. Circuit
Court of Appeals yesterday upheld the death sentence for convicted murderer
Kevin Cooper, whose 2004 execution was stayed just hours before he was to die
by lethal injection in order to conduct tests on evidence found at the crime
scene.

Ruling unanimously that
the results of the tests “do not show Cooper’s innocence,” a three-judge panel
of the court rejected Cooper’s challenge to his 1984 convictions for the
murders of Douglas and Peggy Ryen, their 10-year-old daughter, and an 11-year
old houseguest, whom Cooper hacked to death in the Ryen’s Chino home.

The Ninth Circuit had
halted the execution in order to allow Cooper’s defense team to conduct
mitochondrial DNA testing on blond hairs found in one of the victim’s hands,
and to test for the presence of the preservative agent EDTA on a bloody
t-shirt.

Cooper, who maintains
his innocence, claimed that three other men committed the attacks. He alleged
that testing the hairs would reveal the presence of someone other than himself
or the victims at the crime scene.

He also contended that
testing the shirt would show that officers of the San Bernardino Sheriff’s
Department had used the preservative agent on a sample of Cooper’s blood they
had drawn in order to “plant” the blood on the t-shirt.

Test Results

However, results of the
tests showed that the hairs came from the victims, and that the level of the
preservative agent on the bloody part of the shirt was lower than on a control
sample taken from a non-bloodied part of the shirt.

Writing for the court,
Judge Pamela Ann Rymer opined:

“As the district court,
and all state courts have repeatedly found, evidence of Cooper’s guilt was
overwhelming. The tests that he asked for to show his innocence ‘once and for
all’ show nothing of the sort.”

Rymer rejected Cooper’s
argument that U.S. District Judge Marilyn Huff of the Southern District of
California had abused her discretion by denying him discovery, failing to order
forensic testing, limiting what he could show at evidentiary hearings, and
denying a motion to expand the record on certain claims.

Not Entitled to Relief

Rymer also wrote that
Cooper was not entitled to relief on his claims of actual innocence, that the
state contaminated or tampered with key evidence, that the state failed to
disclose material exculpatory evidence, and that the testimony of Josh Ryen,
Douglas and Peggy Ryen’s then-eight-year-old son who survived the attack, was
unreliable.

“[T]there is no basis to
remand for examination and more testing of the evidence, or additional
evidentiary hearings, as Cooper urges,” she said.

Rymer was joined in her
opinion by Judge Ronald M. Gould.

In a separate concurring
opinion, Judge M. Margaret McKeown pointed to “examples of evidentiary gaps,
mishandling of evidence and suspicious circumstances,” to argue that
significant evidence bearing on Cooper’s culpability had been lost, destroyed
or left unpursued. Such information included blood-covered coveralls belonging
to a potential suspect who was a convicted murderer, and a bloody t-shirt,
discovered alongside the road near the crime scene, she said.

“The forensic evidence
in this case is critical and yet was compromised,” she wrote. “These facts are
all the more troubling because Cooper’s life is at stake.”

McKeown also pointed to
“[c]ountless other alleged problems with the handling and disclosure of
evidence and the integrity of the forensic testing and investigation” that she
said undermined confidence in the evidence, including the fact that the
managing criminologist in charge of the evidence used to establish Cooper’s
guilt was a heroin addict who was fired for stealing drugs seized by the
police.

Constrained by Statute

Despite these problems,
however, McKeown said that she was constrained by the Antiterrorism and
Effective Death Penalty Act of 1996 to uphold Cooper’s conviction because he
had failed to present any facts that could not have been previously discovered
that would sufficiently establish by clear and convincing evidence that no
reasonable factfinder would have found him guilty.

“At oral argument, the
judges asked us whether or not the testing that was done was conclusive and we
said no,” he said. “It needed to be redone.”

Cooper, who is on Death
Row at San Quentin Prison, was the state’s first death row inmate to ask for
DNA testing under a law giving convicted felons the right to request such
testing to support claims of innocence. The tests were not available during
Cooper’s 1984 trial.

The murders took place
on June 5, 1983 in an affluent area of San Bernardino County days after Cooper
escaped from the California Institute for Men in Chino and spent two days
hiding in a vacant house next door.

Court documents indicate
a bloodstained button found in the vacant house likely came from a prison-issue
jacket, and said blood was found in the shower and sink at the vacant home.
Hair that likely came from the Douglas Ryen and his daughter was also found in
the home.

The case is
controversial, as Cooper’s defenders claim he could not have committed the
murders.

In 2001, the television
program “48 Hours” aired a segment in which Peggy Ryen’s mother expressed doubt
about Cooper’s ability to commit the murders. She pointed out that Douglas Ryen
stood 6-foot, 2-inches and was an ex-Marine. She also pointed out that when he
escaped, Cooper was serving time for burglary, and that nothing from the Ryen
home was taken, except their station wagon.

But San Bernardino Chief
Deputy District Attorney John Kochis, who was one of the original prosecutors
on the Cooper case, painted a different picture in an interview with the
MetNews in 2002.

Kochis said that when
Cooper was first arrested in California on the burglary offense, he had escaped
from the Pennsylvania prison system, and was wanted in that state for
assaulting a young woman who Kochis said Cooper kidnapped, raped, stabbed and
left for dead.

He said that
Pennsylvania authorities had “elected not to return him” to that state for
prosecution because Cooper received a death sentence in California.